Too Important to Lose? Draft Executive Order on Cybersecurity and Critical Infrastructure Reaches New Industries

A November 8, 2012 blog post entitled “Post-Election Cybersecurity” analyzed a draft Executive Order on critical infrastructure cybersecurity. A newer version, dated November 21, 2012, is similar to the prior version with some interesting revisions. The ultimate goals remain: using existing regulatory authority, improving information sharing, developing a “voluntary” framework of standards, incentivizing (or punishing?) owners and operators of critical infrastructure, and protecting privacy and civil liberties. Notwithstanding the known and potential changes to the Obama cabinet, there does not appear to be any decrease in the focus on cybersecurity and critical infrastructure that would indicate an Executive Order is not imminent.

The most recent version has a different organization and tone as reflected in the deletion of the term “practices” from the title. The information-sharing section has been moved forward in the document and directs the Director of National Intelligence and the Attorney General to issue instructions to their respective agencies “to ensure the timely production of unclassified versions of all reports of cyber threats to the U.S. homeland that identify a specific targeted entity [emphasis added].” The Secretary of Homeland Security is also directed to produce similar reports. DHS will establish a process for rapid dissemination of these reports to the U.S. targeted entity, and all agencies making notifications are responsible for reporting such notifications. Also, the section opens up the Enhanced Cybersecurity Services initiative to voluntary participation by owners and operators of critical infrastructure in all sectors. This is the former Defense Industrial Base pilot that was only open to select companies. Of note, some of those participants have since withdrawn from the project.

The language in the earlier version under which DHS would request owners and operators of critical infrastructure to report cybersecurity incidents or threats is gone, although any such information submitted voluntarily would still be protected as “voluntarily shared critical infrastructure information” under 6 U.S.C. 133. Rather, the draft executive order takes the new approach that information will be provided to owners and operators who are “targeted entities,” and the delivery of the information will be documented. Two inferences could be drawn: (1) there has been or will be threat information of such urgency, validity, and significance that alerting the potential target is of the utmost importance; and (2) if you do receive such information, you may be asked about the action you took as a result, regardless of whether an actual event occurred.

Prudent companies will have a process for receiving, disseminating and evaluating such information. This is especially true for those companies that have a role in critical infrastructure “at greatest risk.” This determination will result from a “risk-based approach to identify critical infrastructure where a cybersecurity incident could reasonably result in catastrophic regional or national effects on public health or safety, economic security, or national security.” This process differs from the prior draft in several ways: the previous standard was “identify critical infrastructure where a cybersecurity incident could reasonably result in a debilitating impact on national security, national economic security, or national public health or safety.” The new language moves the threshold up from “debilitating,” which, arguably, results from any event, to “catastrophic.” It adds regional impacts to the consideration, which implicitly acknowledges the role of state and regional crisis response entities. And, it gives primacy to “public health or safety” over economic or national security. This shift should not be lost on owners and operators of water, waste treatment, power distribution or medical facilities.

The second change is the use of a consultative process involving the Critical Infrastructure Partnership Advisory Council and sector-specific agencies to inform the identification of critical infrastructure at greatest risk. The previous draft did not include participation by owners and operators. The third difference is that DHS will “confidentially notify” the owners and operators who are identified and ensure they are provided with relevant threat information. Those entities that are notified may request reconsideration through a process to be established. This opportunity to challenge must reflect the recognition that being so notified is significant, and imposes substantial obligations on the owner and operator of critical infrastructure. By this notification, do they become “too critical to lose”?

Other aspects of the recent draft executive order that are similar to, but differ from, the previous version are the Cybersecurity Framework, which will now “provide a prioritized, flexible, repeatable, performance-based and cost-effective approach,” and will “focus on identifying cross-sector security standards and guidelines applicable to critical infrastructure.” The use of incentives remains, as does the potential for revision of the procurement process to include new direction to consider ways to “harmonize and make consistent existing procurement requirements related to cybersecurity.” The Fiscal Year 2013 National Defense Authorization Act, which was recently signed by President Obama, includes a similar use of the procurement system to require specific cybersecurity actions by defense contractors. Please see our related blog posting discussing this legislation. Finally, the draft order contains similar direction to the heads of federal agencies to review existing regulations against the Cybersecurity Framework for consistency, sufficiency and redundancy. These agencies shall consult with private sector owners and operators of critical infrastructure within two years after publication of the final Framework, and report to the Office of Management and Budget regarding any “duplicative, conflicting, or excessively burdensome cybersecurity requirements.”

The most recent draft executive order retains the elements of its predecessor, but appears to focus more on what agencies can and will do with less reliance on private sector “partnership.” Threat information will be delivered and otherwise made available, a framework will be erected, critical infrastructure entities will be designated and notified, and opportunities for private sector participation will continue. Permeating this new draft is a tone indicating that threats to the critical infrastructure are real and need to be addressed by private sector owners and operators. No company that is or may be considered a part of the critical infrastructure should ignore the probability that this document, or a similar version, will be driving compliance and business decisions soon.

Latest Posts

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

- hide

Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.